Everything you need to know about getting divorced
Getting a divorce can be daunting enough, but if you're unsure of the process as well, the whole thing might feel quite intimidating. Want to know what the grounds for divorce are, how much a divorce costs, or how the process works? Solicitor Caroline Elliott, a divorce specialist and partner at law firm Shakespeare Martineau explains it all in simple terms.
"It’s a lot easier than people think," Caroline says. "That’s because although it has to go through a ‘court’, it’s really an administrative process. The courts aren’t there to make people stay together who don’t want to be, so as long as you fill the form in properly and don’t make any hideous mistakes, it’s probably going to be OK."
And, while it may be easier with some help from a lawyer, you don't have to have one.
"It is really straight forward. I would suggest getting legal advice, but you can pretty much do it all yourself if you’re confident about it. The complicated thing with divorce is not the dissolving of the marriage but the sorting out of the issues surrounding that. It's the money and issues about children where you'll need a lawyer," she adds. So if you're thinking about going through the divorce process in England or Wales, here's everything you need to know.
First steps
The first thing you need to do is fill in a 'divorce petition'. If it's you doing so, you become the 'petitioner' aka the person steering the ship.
"The divorce petition is an application form and you can find that on the Internet," Caroline says. "You fill it in and it almost talks you through it with lots of footnotes explaining what the sections mean." What information will you need for this? Names and addresses, dates of birth, where you got married, all pretty basic info. "If you are the petitioner," she adds, "you don’t have to notify your ex-partner when you submit the form." But here's the trickier bit.
Grounds for divorce
"The bit people get a bit stuck on is ‘what’s my basis for the divorce?’. Divorce law is really old-fashioned," Caroline says. "The only 'grounds' for divorce are that the marriage has irretrievably broken down. So to show that's happened, you have to manoeuvre yourself into one of these five categories."
1. Adultery
"This is that they’ve gone off with somebody else, basically," Caroline says. As the law hasn't been reformed since the 70s and is badly out of date, this only refers to heterosexual relationships. If your ex-partner cheated on you with someone of the same sex, you wouldn't be able to use adultery as a grounds of divorce.
"In an adultery petition the other person has to formally admit on a response form to the court that they’ve committed adultery. So if you can’t be sure they’re going to admit to it, you wouldn’t go down this route, you’d probably use 'unreasonable behaviour'."
2. Unreasonable behaviour
"This is the one that’s most commonly used and ‘unreasonable behaviour’ can be anything," Caroline says. "It can be ‘he didn’t like my friends, ‘he doesn’t go out without me’ or even ‘she doesn’t do the washing up’, whatever."
You can also use the 'unreasonable behaviour' grounds where the relationship has involved domestic abuse. "You have to put in the petition a few paragraphs of what’s happened and why this means the marriage has broken down," she adds. "These need to be specific examples but you don’t have to include dates, just a general pattern of behaviour really." Unlike with adultery, the person on the receiving end doesn’t have to formally admit to this.
3. Desertion
"This is a legal thing that no one ever uses," Caroline says. Gov.uk explains desertion as:
Your husband or wife has left you:
without your agreement
without a good reason
to end your relationship
for more than 2 years in the past 2.5 years
You can still claim desertion if you have lived together for up to a total of 6 months in this period.
4. and 5. Separation
There are two options for separation grounds. The first applies if "you’ve lived separately in separate homes (sometimes people wangle it if they’ve been under the same roof but it’s hard to do) physically apart for two years. This requires the other person’s agreement," Caroline explains. The second is if you’ve lived apart for five years, and doesn’t require the other person’s agreement.
Sending the petition to the court
Once your petition is filled in, there are a few other bits you'll need. "You need to have either the original marriage certificate or an official copy that you get from the local registrar. That costs around £12," Caroline says. There will also be a court fee at this point (currently £550) and the petition won't be issued without a payment being made.
"The petitioner has to pay that, but people often agree to share the costs. If you’re on a very low income you can sometimes get an exemption from some of the fee but you have to make a separate application and produce details of your circumstances."
What if there's money to be sorted out?
"In the petition, there's a question asking if you want to make a financial claim and you just tick the box," she says. "Very often people don’t know exactly what there is [money-wise] to argue about. We have a process called financial disclosure which means that before you start even considering how you’re going to divide things up, you both need to be open and honest and provide information about your finances. This tends to be done in parallel to the petition."
What happens next
Caroline explains what happens next. "Once you’ve sent it off to the court, your ex-partner will then get a copy of it - so they'll know what you’ve said [in the petition]. The person on the receiving end - the ‘respondent’ - then has to send back an acknowledgement form confirming they’ve had the papers. They'll also state whether they’re going to defend against the grounds and they’re meant to do that within seven days."
Decree nisi
Most divorces are undefended and go through without any dispute, Caroline explains. The court then sends a copy of their acknowledgment to the petitioner. You'll then have to fill in another form to apply for the 'decree nisi'. "It’s all old Latin stuff," she says. "This is the point where the court says ‘yeah you’ve filled the form in properly, you’ve got sufficient grounds and we agree it can go ahead’. But the law says the decree nisi has to be ‘pronounced in open court’. You don’t have to go, nobody ever goes near a court for these things. But what the courts do, is sort of pin a list up and the judge says ‘decree nisi pronounced’. It’s all a bit daft really."
Decree absolute
"Once you’ve got your decree nisi pronounced, after six weeks and a day, if you’re the petitioner, you can apply for the 'decree absolute'. That’s the bit of paper that dissolves the marriage," Caroline says. "When you read that someone’s got a divorce in six weeks, what it actually means is they’ve actually just got the decree absolute, it doesn’t mean it only took six weeks. That’s what people refer to as a ‘quickie’ divorce in the tabloids because they don’t understand the process." The six weeks and a day is essentially a cooling off period incase you change your mind.
How long will the process take?
"In the good old days we used to say three to four months," Caroline says. "Things are taking somewhat longer now. In the last years, the government has ‘streamlined’ the process. Before, you could send a divorce petition in to any county court in the country in England and Wales. The government set up ‘divorce units’ of which there are about half a dozen and now everyone has to send their divorces into those. A lot of what happens during the process can be done by court staff and doesn’t need a judge involved or anything.
"They thought this would be much more efficient. And at first they were quite quick. In the last year, it’s been dreadful and there’s been huge delays everywhere. So, in an ideal world it could take three to four months, it’s more likely to take five or six." This is obviously if there’s no issues or hitches or dispute.
How much will it cost?
This depends. "Aside from the court fee, it would probably cost about £600," Caroline says, "but that’s only dissolving the marriage. The expensive part of it that can run into thousands of pounds if there’s lots of arguing with the money and children side of it.
"The more people can try and agree – even if it’s difficult – the less expensive it will be. The costs can run away when people just won’t engage with it or argue with every tiny little bit. Pick your battles and don’t fight about the little things, it’ll only cost you money. Most family lawyers operate on hourly rates rather than fixed fees because you don’t know how long it’s going to take or if people are going to argue," she adds.
Will you have to talk to your ex throughout the process?
You don't have to, but it might help if you can. Caroline says, "it’s better if you can communicate with your ex-partner – especially if there’s children involved because even though you’re not going to be married anymore, you’re still parents – so if you can retain some semblance of a relationship, it's better for everybody."
However if it's hard to talk to them or a domestic abuse case, then don't.
Getting through it as quickly and painlessly as possible
Caroline says it can be a simple and stress-free process if you:
- Don’t get bogged down in the finer points
- Discuss things as much as you can between yourselves
- Don’t take tiny points and make them into a big deal
- Don’t use your children or money as weapons against each other
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